Citation NR: 9603389
Decision Date: 02/12/96 Archive Date: 02/20/96
DOCKET NO. 94-10 069 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in No. Little
Rock, Arkansas
THE ISSUES
1. Whether new and material evidence has been submitted to
reopen the veteran's claim of entitlement to service
connection for an upper back disorder.
2. Entitlement to a compensable evaluation for abdominal
hernia repair.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
J. A. McDonald, Counsel
INTRODUCTION
The veteran has recognized active duty service for VA
purposes from June 1973 to June 1976. This case comes before
the Board of Veterans' Appeals (hereinafter Board) on appeal
from the Department of Veterans Affairs Regional Office in
No. Little Rock, Arkansas (hereinafter RO).
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that service connection for an upper
back disorder is warranted as he injured his back while in
service. He further maintains that manifestations of his
service-connected abdominal hernia repair are more severe
than currently evaluated.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991), has reviewed and considered all of the
evidence and material of record in the veteran's claims file.
Based on its review of the relevant evidence in this matter,
and for the following reasons and bases, it is the decision
of the Board that the veteran has submitted new and material
to reopen his claim of entitlement to service connection for
an upper back disorder; however, upon review of all the
evidence, it is the decision of the Board that the
preponderance of the evidence is against the veteran's claim
of entitlement to service connection for an upper back
disorder. It is the further decision of the Board that the
preponderance of the evidence is against the veteran's claim
of entitlement to a compensable evaluation for abdominal
hernia repair.
FINDINGS OF FACT
1. Service connection for an upper back disorder was denied
by a Board decision dated in August 1991.
2. Additional evidence submitted since the August 1991 Board
decision includes service medical records demonstrating
complaints of upper back pain and muscle spasm.
3. There is no medical evidence linking the veteran's recent
complaints of back pain with his active military service.
4. The veteran's service-connected abdominal hernia repair
is manifested by complaints of pain without medical findings
of a recurrent hernia, weakening of the abdominal wall, or
indication for a supporting belt.
CONCLUSIONS OF LAW
1. The evidence submitted to reopen the veteran's claim of
entitlement to service connection for an upper back disorder
is new and material and the veteran's claim of entitlement to
service connection for this disorder is reopened.
38 U.S.C.A. §§ 5107, 5108, 7104 (West 1991); 38 C.F.R.
§§ 3.104(a), 3.156(a) (1994).
2. An upper back disorder was not incurred in or aggravated
by active military duty. 38 U.S.C.A. §§ 1110, 1131, 5107
(West 1991); 38 C.F.R. § 3.303 (1994).
3. The criteria for a compensable evaluation for abdominal
hernia repair have not been met. 38 U.S.C.A. §§ 1155, 5107
(West 1991); 38 C.F.R. § 4.114, Diagnostic Code 7339 (1994).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Upper Back
The Board denied the veteran’s claim for service connection
for an upper back disorder in August 1991, on the basis that
an upper back disorder was not shown in service or for many
years thereafter. Under applicable law and regulations, an
unappealed Board decision is final, and the veteran’s claim
may not be reopened and reviewed unless new and material
evidence is submitted by the veteran. 38 U.S.C.A. §§ 5108,
7104; 38 C.F.R. § 3.104(a). “New” evidence is that which is
neither cumulative nor redundant. Colvin v. Derwinski, 1
Vet.App. 171 (1991). To be “material,” the evidence must be
relevant and probative as to the issue presented. Id. at
174. Moreover, the additional evidence submitted must
provide a reasonable possibility that all the evidence, both
old and new, when taken together would change the outcome of
the case. Id. The evidence submitted since the 1991 Board
decision includes post-service medical evidence documenting
complaints of pain, the veteran’s personal hearing before the
RO, and additional service medical records indicating that
the veteran complained of back pain while in service, with
evidence of muscle spasm. As the service medical records are
neither duplicative nor cumulative, and are both probative
and relevant to the issue at hand, the Board finds them "new
and material," and therefore, the veteran's claim of
entitlement to service connection for an upper back disorder
is reopened.
In Bernard v. Brown, the Court held that when the Board
addresses in its decision a question
that had not been addressed by the RO,
it must consider whether the claimant
has been given adequate notice of the
need to submit evidence or argument on
that question and an opportunity to
submit such evidence and argument and to
address that question at a hearing, and,
if not, whether the claimant has been
prejudiced thereby.
Bernard, 4 Vet.App. 384, 394 (1993). In the instant case,
the RO decision in June 1993 leading to this appeal did not
adjudicate the issue as to whether new and material evidence
had been presented, but instead addressed the issue on its
merits, and the laws and regulations concerning finality of
Board decisions were not provided to the veteran. The Board
has found that new and material evidence was submitted to
reopen the veteran’s claim of entitlement to service
connection for an upper back disorder, but concludes that the
veteran would not be prejudiced under Bernard by proceeding
on the merits. The veteran has consistently made merit-based
arguments throughout the course of the RO adjudication
process and his appeal, namely that he incurred an upper back
disorder in service. Additionally, the veteran has been
provided with notice of the need to submit evidence in
support of his service connection claim, has been assisted in
attempting to obtain the evidence, and has provided no
indication that further relevant evidence can be obtained or
exists. Considering these findings, the veteran would not be
prejudiced by the Board addressing the merits of his claim.
The veteran's service medical records in 1974 indicate that
the veteran complained of mid-back pain radiating to the
buttock and legs. He denied numbness and paresthesia or
other neurologic symptoms in the abdomen or extremities. X-
rays were negative for any thoracic spine abnormality. The
impression was paraspinal muscle spasm. Within three days,
it was noted that the veteran was doing well, and was
asymptomatic, without limitation of motion or neurologic
deficit. Thereafter, the service medical records are
negative for any complaints, treatment, or findings of a back
disorder. Significantly, the veteran noted at his separation
examination conducted in January 1979, that he did not
experience recurrent back pain and, upon examination, no
abnormalities of the spine were found.
Pertinent Department of Veterans Affairs (hereinafter VA) law
provides that entitlement to service connection may be
allowed for a disability which is incurred in or aggravated
by the veteran's period of active service. 38 U.S.C.A.
§§ 1110, 1131. However, a finding of the existence of a
current disability and a determination of a relationship
between that disability and an injury or disease incurred in
service is also required. 38 U.S.C.A. §§ 1110, 1131;
38 C.F.R. § 3.303.
After service discharge, the first evidence of record of
upper back complaints was in 1990. A VA examination
conducted in January 1990 showed tenderness to palpation at
the T5 level; however full range of motion with normal x-ray
findings of the thoracic spine were also reported. The
diagnoses did not include a back disorder. In February 1990,
the veteran complained of upper extremity numbness and
weakness. A cervical myelogram was performed; the results
were normal. It was noted that an electromyogram and nerve
conduction studies showed mild denervation of C6 on the left.
No operative lesion was reported.
At his hearing before the RO in January 1994, the veteran
testified that his back occasionally bothered him after
service discharge but he did not seek treatment. He further
testified that, after service discharge, he injured his upper
back in late 1979, for which he received Worker’s
Compensation, and again in 1990 and 1991. He noted that he
does not currently receive treatment for a back disorder.
On VA examination of the thoracic spine in February 1994,
tenderness to palpation in the interscapular region and a
full range of motion were reported. Thoracic spine X-rays
were normal. The diagnoses included residuals, thoracic
spine injury.
Although the evidence demonstrates that the veteran
experienced paraspinal muscle spasm in 1974, while in
service, the veteran has testified that he has injured his
back on three occasions after service discharge. He believes
that his current back complaints are related to the single
episode of back pain noted in service. I have given due
consideration to the veteran's testimony. His lay testimony
is competent to establish the occurrence of an injury. His
sworn testimony and other statements are not competent
evidence, however, to establish the etiology of his current
complaints. Medical diagnosis and causation involve
questions that are beyond the range of common experience and
common knowledge and require the special knowledge and
experience of a trained physician. Because he is not a
physician, the veteran is not competent to make a
determination that his current complaints are the result of
any injury over two decades ago. Espiritu v. Derwinski, 2
Vet.App. 492, 495 (1992); Grottveit v. Brown, 5 Vet.App. 91,
93 (1993).
There is no competent evidence on file linking the veteran's
current upper back complaints to service or to any incident
of service, despite his assertions that such a causal
relationship exists. This lack of cognizable evidence is
particularly dispositive as the first medical evidence of
record for treatment for symptoms of this disorder is more
than 10 years after his service had ended. Cf. Mense v.
Derwinski, 1 Vet.App. 354, 356 (1991) (In claim for service
connection for low back disability, veteran failed to provide
evidence of continuity of symptomatology and to account for
lengthy period for which there is no clinical documentation
of his low back condition). As there is no evidence that
provides the required nexus between military service and the
current upper back complaints, service connection for an
upper back disorder is not warranted. See Caluza v. Brown, 7
Vet.App. 498 (1995).
II. Abdominal Hernia Repair
Upon review of the record, the Board concludes that the
veteran's claim for entitlement to a compensable evaluation
for abdominal hernia repair is well-grounded within the
meaning of the statute and judicial construction. Murphy v.
Derwinski, 1 Vet.App. 78, 81 (1990); 38 U.S.C.A. § 5107(a).
VA therefore has a duty to assist the veteran in the
development of facts pertinent to his claim. In this regard,
the veteran's service medical records, post-service private
clinical data, and VA outpatient, hospitalization, and
examination reports have been included in his file. Upon
review of the entire record, the Board concludes that the
data currently of record provide a sufficient basis upon
which to address the merits of the veteran's claim and that
he has been adequately assisted in the development of his
case.
Disability ratings are based, as far as practicable, upon the
average impairment of earning resulting from the disability.
38 U.S.C.A. § 1155. The average impairment is set forth in
the VA's SCHEDULE FOR RATING DISABILITIES, codified in C.F.R. Part
4 (1994), which includes diagnostic codes which represent
particular disabilities. The pertinent diagnostic codes and
provisions will be discussed below.
The veteran's service medical records reveal the veteran
underwent repair of a lateral ventral hernia in 1973.
Thereafter, he underwent observation and exploratory surgery
in 1974 for a possible recurrent lateral ventral hernia due
to the recurrence of pain and bulge. No recurrence was
found. On separation examination a 2-inch scar on the left
lower abdomen was noted, however, no complications or
sequelae as a result of the hernia repair in service was
shown. A VA examination in January 1990 reported the veteran
complained of intermittent pain in the left mid-abdomen area.
He stated it felt like a bulge that he would need to push
back into his abdomen. On examination, a 10-centimeter
oblique scar over the left, mid-abdominal quadrant was found;
however, no evidence of a hernia was shown. The diagnoses
included postoperative abdominal hernia repair.
Based on this evidence, the RO, by rating action in July
1990, granted service connection for abdominal hernia repair
and assigned a noncompensable evaluation under 38 C.F.R.
§ 4.114, Diagnostic Code 7339, which rating has continued in
effect. This rating contemplates a healed postoperative
wound, with no disability and no supporting belt required. A
compensable evaluation is warranted where there is a small
postoperative ventral hernia, not well-supported by a belt,
or a healed ventral hernia or postoperative wound with
weakening of the abdominal wall and indication for a
supporting belt. Id.
VA treatment records in 1992 and 1993 indicate that the
veteran complained of intermittent protruding of an
incisional hernia for 18 years, with increased frequency of
protrusion, which he was able to reduce by himself. The
veteran also submitted affidavits, dated in January 1994,
from L. H. and J. B., each reporting an incident in which
they had witnessed a “knot” on the veteran’s left side, upon
coughing or bending, respectively, and had seen the veteran
push it back into his abdomen. Additionally, the veteran
testified at the RO in January 1994 that various things
caused “the bulge” and he never knew when it would protrude.
He stated that it happens when he moved in a certain way,
using his abdominal muscles. He testified that the area hurt
when it was not protruding, but felt as though he “tore a
stitch” when it protruded. The veteran testified that he
would take his hand and shove it back into his abdomen. He
also related the same incident that L.H. dated as having
occurred in mid-September 1993.
On the other hand, despite the veteran’s reports to treating
physicians and VA examiners, the medical records do not
document the presence of a current ventral hernia. A VA
outpatient treatment record in October 1992 noted the
veteran’s complaint of abdominal pain in the left lower
quadrant, but added the veteran had an incisional hernia that
was not then present. However, a note stating “needs repair”
was made and a surgery clinic appointment was requested. On
surgical consultation in November 1992, the examiner was
unable to locate hernia on physical examination. However, it
was noted that the diagnosis was a ventral incisional hernia
and surgery was recommended. Similarly, a VA examination in
December 1992 did not detect recurrence of the ventral
hernia. On examination, an unattached, nontender, six-inch
scar was noted in the left upper abdominal quadrant was
reported. There was no evidence of an abdominal mass. The
diagnosis was postoperative status left upper abdominal
ventral hernia repair.
A May 1993 VA outpatient treatment record noted the veteran
complained of pain and a protrusion while performing sit-ups
and taking off boots. Examination revealed no hernia
palpated, and no swelling. The assessment was left upper
quadrant incisional hernia by report. The examiner opined
that the veteran had an incisional hernia that needed repair.
On follow-up examination in August 1993, physical examination
revealed a well-healed incision in the left upper quadrant,
with no bulge. A history of a small palpable defect was
noted. In November 1993, the veteran complained of a
periodically protruding incisional hernia. However, physical
examination did not find an incisional hernia. The
assessment was incision hernial left upper quadrant. It was
also noted that the veteran demanded tests prior to surgery.
An upper gastrointestinal study in December 1993 was normal.
Surgery was not scheduled as there was no evidence of hernia.
Consideration has been given to the veteran's testimony and
the affidavits submitted in evidence. This evidence is
competent to establish the occurrence of an incident but lay
statements are not competent to determine the severity of a
disorder. See Espiritu, 2 Vet.App. at 495. Significantly,
despite several examinations in 1992 and 1993 there is no
competent medical evidence that establishes that the veteran
has a recurrent ventral abdominal hernia.
An additional VA examination was conducted in February 1994
to assist the veteran in developing his claim. The abdominal
examination revealed a nontender 11-centimeter horizontal
left middle quadrant scar. Generalized tenderness to deep
palpation in the region was noted only when the veteran was
not distracted. It was noted when his attention was focused
elsewhere, palpation was easily performed without complaint.
No hernia was noted. The diagnoses included postoperative
abdominal wall hernia repair.
Upon review of the medical evidence, there is no finding of
weakening of the abdominal wall or indication for a
supporting belt reported. Moreover, although the veteran
complains that the abdominal area bulges on straining,
functional impairment has not be found. Indeed, although
examiners have assessed a ventral incisional hernia based on
the veteran's complaints, on physical examination and
testing, no evidence of a hernia has been found.
In exceptional cases where schedular evaluations are found to
be inadequate, the RO may refer a claim to the Chief Benefits
Director or the Director, Compensation and Pension Service,
for consideration of "an extra-schedular evaluation
commensurate with the average earning capacity impairment due
exclusively to the service-connected disability or
disabilities." 38 C.F.R. § 3.321(b)(1) (1994). "The
governing norm in these exceptional cases is: A finding that
the case presents such an exceptional or unusual disability
picture with such related factors as marked interference with
employment or frequent periods of hospitalization as to
render impractical the application of the regular schedular
standards." Id. In this regard, the schedular evaluations
in this case are not inadequate. A compensable rating is
provided for certain manifestations of the service-connected
abdominal hernia repair but the medical evidence reflects
that those manifestations are not present.
Moreover, the Board finds no evidence of an exceptional
disability picture. The veteran has not required
hospitalization due to this service-connected disability,
there is no evidence that he is currently receiving treatment
for this disability, nor is he taking medication. Id.
Accordingly, the RO's failure to consider or to document its
consideration of this section was harmless error.
The evidence does not support the assignment of a compensable
evaluation for the veteran's service-connected abdominal
hernia repair on either a schedular or extra-schedular basis.
ORDER
Service connection for an upper back disorder is denied. A
compensable evaluation for abdominal hernia repair is denied.
MARY GALLAGHER
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991), a decision of the Board of Veterans' Appeals granting
less than the complete benefit, or benefits, sought on appeal
is appealable to the United States Court of Veterans Appeals
within 120 days from the date of mailing of notice of the
decision, provided that a Notice of Disagreement concerning
an issue which was before the Board was filed with the agency
of original jurisdiction on or after November 18, 1988.
Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402
(1988). The date which appears on the face of this decision
constitutes the date of mailing and the copy of this decision
which you have received is your notice of the action taken on
your appeal by the Board of Veterans' Appeals.
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